TaxTMI 
TaxTMI 
2022 (8) TMI 690
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.... with the GST authorities relating to the applicability of correct HSN Code of the procurement product and mention the same in the NIT (Notice inviting tender) tender/ bid document, so as 'to ensure uniform bidding from all participants and to provide all tenderers/bidders a 'Level Playing Field'." 3. The appellants take exception to both the reasoning employed by the High Court and the final direction, as aforesaid. 4. A global tender was published on 11.04.2019 by the third appellant (Diesel Locomotive Work through its Manager, Varanasi). E-tenders were invited for procurement of turbo wheel impeller balance assembly 2BLW Part No. 16080385 (hereinafter referred as, 'the product'). The writ petitioner was one of the tenderers. So were among others Respondents 6 to 8 in the Writ Petition. Respondent No. 6 in the Writ Petition is arrayed as respondent No. 2 in this appeal. Respondent No.7 and 8 in the Writ Petition were initially arrayed as Respondents 3 and 4 in the Special Leave Petition but later deleted on the request of the appellants. 5. On the basis of the tabulation carried out by the third appellant, respondent no.2 in the appeal emerged as L1 whereas r....
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....the financial bids, would show that the entities, which emerged as L1 to L3, had quoted their payment of GST at a rate of 5 per cent on the base rate. The writ petitioner had quoted its GST rate as 18 per cent. The writ petitioner, in fact, had quoted its base price as rupees seven lakh and three thousand. L1 had quoted its rate as rupees six lakhs. There is a difference of just about 17.1 per cent in the base price of L1 and the writ petitioner. But only on account of the fact that L1 has shown the rate of GST at five per cent whereas the writ petitioner has shown with GST liability at 18 per cent, the total price of the writ petitioner became Rs. 8,29,540/- whereas the total price of the L1 became Rs.6,30,000/-. On account of this, a unilateral act of L1 in showing the GST rate at 5 per cent, generated a difference of about 31.6 per cent in the total price quoted by L1 and the writ petitioner. It is the further case of the writ petitioner that the GST rates of each product and service have been duly clarified by the GST Council (for short, 'the Council'), using the Harmonised System of Nomenclature (for short, 'the HSN Code), in accordance with Chapter 84. It is the case of the w....
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....exercising power of judicial review. Thereafter, the Court has found that the Court can certainly examine as to whether the decision-making process was reasonable, rational and not arbitrary. Support was drawn from Judgment of this Court in Reliance Energy Ltd. and another v. Maharashtra State Road Development Corpn. Ltd. and others (2007) 8 SCC 1. Thereafter, it was found that the bid documents contemplated that the applicable GST has to be deducted from the bid of the successful tenderer under the reverse charge mechanism and the deposit of the same is to be made with the concerned Tax Authority. There will be disparity in the total price offered on account of the difference in the GST rate, thus, denying fair competition or level playing field. The mentioning of the concerned HSN Code is necessary to determine the GST rate, which is to be added to the base price to arrive at the final price. Applying the said process, it was found that the rate quoted by the writ petitioner was more than 20 per cent of the rate quoted by L1 and also L2 and L3, on account of writ petitioner quoting much higher rate, which was the correct rate, whereas L1 to L3 did not quote the correct rate. It w....
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....e price, then, if he is selected, he would be entitled only to the payment of the amount quoted. In other words, the duty to pay the GST, being an indirect tax, is on the seller or supplier. He would have to file the return and assess the tax on self-assessment basis and pay the tax. This would equally be the position of the tenderer, who may quote the rate, which may not be the correct rate but a lesser rate. In both the cases last mentioned, viz., where the tenderer does not include the tax component separately, or includes it, but shows tax rate at a lower rate, the tax element would have to be absorbed by the bidder. That is not the look out of the appellants. The appellants are concerned only with selecting the lowest of the bidders, who is, no doubt, otherwise compliant with the norms. The view taken by the High Court creates considerable impediments, is unworkable and would lead to greater problems. It also involves the appellants being obliged to seek clarification regarding the HSN Code under the GST Act. There are Authorities under the concerned taxing Statute, viz., the GST Act, who are charged with the duty of assessing and collecting the tax under the Act. The impugned....
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....ted the sublime object sought to be achieved in the 'Make in India' Policy. He would emphasise that what has been going on, before the High Court stepped in with the impugned Judgment, was clearly an unfair trade practice. The stand of the writ petitioner promotes the fundamental value of honesty. A bidder, who does not disclose the correct rate of tax, despite the injunction contained in Clause 2.7.6, will walk away with a contract, having indulged in a completely unfair practice. The implementation of the impugned Judgement would result in the extinguishment of this wholly undesirable practice. He would further contend that the appellants had, in fact, brought out tender notices, implementing the direction of the High Court. It is not something, which is incapable of being achieved. He next drew our attention to the circumstance, that even the appellant has purchased the product, showing the tax rate at 18 percent, as is evident from the document dated 21.03.2017. He would further contend that the Government of India, in the Ministry of Defence, has been showing the correct HSN Code, thus, facilitating the uniform disclosure of correct rate of tax for all the bidders. He next rel....
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....ions. He would contend that the impugned directions are wholly impracticable and far from putting an end to the disputes, it will only engender unending disputes. 14. Learned ASG would contend that the no reliance can be placed on the publication in the Business Standard about tax invasion in the Railways and the purport of the complaint can only be that if there is evasion, the Tax Authorities must be awake to their duty and vigorously pursue the evaders as per law. ANALYSIS SCOPE OF WRIT OF MANDAMUS 15. The learned ASG contended that the High Court erred in issuing the direction, which is in the nature of the Writ of Mandamus. It is his case that a Writ of Mandamus would lie only when a Statute imposes a duty and there is failure in discharge of duty. We would think that this is not a matter which is res integra. As early as in Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another (1986) 2 SCC 679 , a Bench of three learned Judges of this Court had this to say: "18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of man....
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....ing the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 16. Three years thereafter, in the decision reported in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others (1989) 2 SCC 691, while dealing with the word 'authority', used in Article 226 and also dealing with the issue as to whether Mandamus will lie even if the duty is not imposed under a Statute, this cour....
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.... be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right". 23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion." 18. Therefore, it is clear that a Writ of Mandamus or a direction, in the nature of a Writ of Mandamus, is not to be withheld, in the exercise of powers of Article 226 on any technicalities. This is subject only to the indispensable requi....
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....e." xxx xxx xxx 44. In Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216] , the Court, after referring to Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] and Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa [Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464] , expressed the view that (at SCC p. 229, para 23) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play and actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose and if the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities. It further observed that fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be a....
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....ferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of T.N. [(2007) 2 SCC 1] , Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. "Level playing field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of "level playing field". We may clarify that this doctrine is, however, subject to public interest. In the world of globalisation, competition is an important factor to be kept in mind. The doctrine of "level playing field" is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. "Globalisation", in essence, is liberalisation of trade. Today In....
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....thod is known as "reconciliation method"." 23. The observations made by the Court, undoubtedly, draw inspiration from factual matrix essentially involved in the culling out of the principle of level playing field, which was found to be impaired on the basis of a lack of legal certainty, as found established by the material available on record. In the course of observations in paragraph-36, this Court held that Article 19(1)(g) confers a Fundamental Right to carry on a business to a company. We would accept it, subject to the caveat that Article 19 confers a right on the citizens, who are natural persons. However, we take it that, what the Court had in mind was, a situation where the company is in the party along with one or more shareholders, who are citizens of India. However, there can be no quarrel with the position at law, having regard to the undeniable and breath-taking advances made by the Courts, drawing inspiration from Article 14 that equals must be treated equally and more importantly, the other facet of Article 14, viz., that all actions of State must be fair, which constitutes the major plank of attack against State action in the arena of contracts. This again is su....
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....l out of GST: All the bidders/ tenderers should ensure that they are GST compliant and their quoted tax structure/ rates are as per GST Law. 30. At this juncture, we may also notice that there is a reference to the statutory variation clause. We were unable to locate a statutory variation clause, as such, from the tender documents relevant to the bid in question. However, we would refer to the statutory variation clause, which is to be found at page 56 of the counter affidavit (in connection with another tender) filed by the writ petitioner before this Court which appears to be the standard clause: "Statutory Variation In taxes and duties, or fresh imposition of taxes and duties by State/ Central Governments in respect of the items stipulated in the contract (and not the raw materials thereof), within the original delivery period stipulated in the contract, or last unconditionally extended delivery period shall be to Railways account. Only such variation shall be admissible which takes place after the submission of bid. No claim on account of statutory variation in respect of existing tax/duty will be accepted unless the tenderer has clearly indicated in his offer the r....
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....17, showing import of the product with GST rate being show at 18 per cent. There is also reference to a letter dated 04.06.2018, written by the writ petitioner to the Executive Director of Public Grievance, Ministry of Railways. Therefore, the writ petitioner must be treated as aware of the consequences that would flow from the effect of the terms of the Notification. We, however, notice that the writ petitioner went ahead and made its bid pursuant to the NIT dated 11.04.2017. The case of the writ petitioner, admittedly is, that the appellants opened the tender and made a tabulated statement and found that the writ petitioner would stand ranked at L4. 33. Before we embark on the scope of the Clauses, we have set out, it becomes necessary to refer to the nature and incidence of tax under the GST Act. The Central Goods and Services Act, 2017 was published in the Gazette on 12.04.2017 (hereinafter referred to as the 'Central Act'). It provides for an indirect tax. It is, as the very name of the Act suggests, levied on transactions of goods and services or both. Section 2 (11) defines the 'State Goods and Service Tax Act' as meaning 'the respective State Goods and Services Tax Act, ....
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....mining him on oath and issuing commission and production of books of account and other records. We may also notice Section 168, which has been relied upon by the writ petitioner. It reads as follows: "168. Power to issue instructions or directions. - (1) The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the implementation of this Act, issue such orders, instructions or directions to the central tax officers as it may deem fit, and thereupon all such officers and all other persons employed in the implementation of this Act shall observe and follow such orders, instructions or directions. (2) The Commissioner specified in clause (91) of section 2, sub-section (3) of section 5, clause (b) of sub-section (9) of section 25, sub-sections (3) and (4) of section 35, sub-section (1) of section 37, sub-section (2) of section 38, sub-section (6) of section 39, sub-section (5) of section 66, sub-section (1) of section 143, sub-section (1) of section 151, clause (l) of sub-section (3) of section 158 and section 167 shall mean a Commissioner or Joint Secretary posted in the Board and such Commissioner or Joint Secretary shall exe....
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....nt on the product. It is thereafter that the Writ Petition was filed seeking the reliefs, we have already noticed. 37. The appellants stand in the shoes of a purchaser of goods and services. By the global tender floated by the appellants, the appellants called for e-tenders from intending suppliers of the goods. The terms of the tender were well-known to the tenderers. Under Clause 2.7.6, undoubtedly, the bidders and the tenderers, while quoting the rates, were to clearly indicate the rate of applicable duties and taxes included in the price quoted by them. Let us pause for a moment and analyse its true meaning. Under the said Clause, the bidders were to quote the rate of applicable duties and taxes, which were included in the price quoted by them. This Clause must be read in conjunction with Clause 2.8.6, which provides that the purchaser (appellants) will not be responsible for the payment of taxes and duties paid by the supplier, on the basis of the misclassification or a misapprehension of law. This would mean that the appellants as purchaser was making it clear that it will have no liability to shoulder, in the payment of tax if it is found that, while indicating the rate o....
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....ucture/rates are as per the GST norms. This Clause again must be read in conjunction with Clause 2.9.2, which makes it clear that a tenderer may quote a rate without including any tax component. 38. It is clear that the Clauses read together will yield the following result, bearing in mind also the GST regime. The liability to pay tax under the GST regime is on the supplier. He must make inquires and make an informed decision as to what would be the relevant HSN Code applicable to the items and the rate of tax applicable. Thereafter, when he makes the bid, the issue of competition for winning the bid, would come into clear focus. The goal of the bidder ordinarily is to emerge successful and bag the contract. The extent of profit that he would earn, is a matter, which is essentially a matter to be decided by him. He may, for germane reasons, wish to bag a contract, with situations ranging from one extreme end of the spectrum, viz., even when the prospect of a loss stares at him, or a slightly brighter outcome, viz., the contract working on a break-even basis or moving on to an even more optimistic possibility, namely, of the contract earning him profit, which he is willing to tak....
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....therefore be expected to find out the HSN Code and announce it so as to bind the tenderers or fetter the power of jurisdictional officer of the supplier. 41. Learned Additional Solicitor General purportedly drew support from the judgment of this court in Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran (2012) 5 SCC 306. In the said case, the appellant who was the manufacturer of certain products entered into handling contract with the respondent. A clause in the contract inter alia provided that the respondent was to bear and pay all taxes, duties and other liabilities in connection with the discharge of his obligation. The clause, in question, also permitted the appellant to deduct taxes or duties at source in the matter of payment of bill to the respondent. The appellant deducted 5 per cent towards Service Tax. Thereafter, in accordance with the law, as it stood, there was a retrospective amendment by which the liability to pay the service tax stood shifted to the recipient of service. The Arbitrator, appointed to resolve the dispute raised by the respondent that he was not liable to pay the tax on the goods, rejected the contention. The award was set aside by the High cour....
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....e writ petitioner. Is that so? The answer to this question, has both legal and factual dimensions. As far as the legal aspects are concerned, the fundamental question, we must pose is, whether there exists any public duty with the appellants to indicate the HSN Code when they float a public tender. Here the learned ASG is correct, when he points out that there is no statutory duty cast on the appellants to indicate the HSN Code in a tender of the kind we are concerned with. Proceeding on the basis that a public duty may emerge, not merely from a Statute but in various other ways, which has been touched upon, in Andi Mukta (supra) as also, in Mansukh Lal (supra) and even on an expansive exploration, does such a duty flow from any other legitimate source? THE CIRCULAR OF THE RAILWAY BOARD DATED 05.09.2017 44. The writ petitioner, no doubt, lays store by the Communication dated 05.09.2017. It is, undoubtedly, issued by the Railway Board. We may advert to the same: "BHARAT SARKAR MINISTRY OF RAILWAYS RAILWAY BOARD New Delhi No: 2008/RS(G)/777/l Date:05.09.2017 The General Manager, All Indian Railways/PUs, NF(C), CORE The....
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....corporate HSN Number in the tender document. While the use of the word 'may' in a statute is capable of being interpreted as mandatory and assuming that we can apply such a principle to a circular we would hold that having regard to the context, the consequences that follow, the tax regime and the public interest, a mandatory duty cannot be spelt out. On the one hand, the writ petitioner would draw support from the same to contend that all that the High Court has done is to direct the appellants to implement the communication issued by the Railway Board itself. On the other hand, learned ASG would lay emphasis on the word 'may'. He would also draw attention to the next following sentence and emphasised that it is responsibility of the bidder to quote the correct HSN number and corresponding GST rate. 46. We are of the view that when read in a holistic manner, the purport of the Railway Board is that it is the responsibility of the bidder to quote the correct HSN Number and the corresponding GST rate. We have already unravelled the true scope of the relevant Clauses and wide range of results that would follow on its true construction. It may be true that the circular permits the ....
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....ting to classification of goods and services, there is a detailed procedure provided in the matter. The matter does not rest with the decision of the original Authority. A right of appeal is provided. The matter may travel to the Supreme Court. The provisions contemplate powers of a civil court in the matter of discovery, adducing of evidence etc. In other words, it is long drawn and elaborate procedure and the direction to 'clarify' with the GST Authorities, as directed by the High Court, can hardly square with the cumbersome and elaborate process detailed in the Chapter relating to the advance ruling. The advance ruling, we notice, is binding on the applicant ordinarily. No doubt, it has a wider impact in circumstances detailed in Section 103(1A). We are at a loss to further understand how in the name of producing a level playing field, the State, when it decides to award a contract, would be obliged to undertake the ordeal of finding out the correct HSN Code and the tax applicable for the product, which they wish to procure. This is, particularly so when the State is not burdened with the liability to pay the tax. The liability to pay tax, in the case before us, is squarely on t....
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....eliance placed on a customs invoice dated 21.03.2017, it is pointed out on behalf of the appellants that the importer on its understanding, entered the rate (18%). Proceeding on the basis that it was a unit of the railways, this by itself cannot bind the appellants to comply with the impugned judgment. The nature of the clauses and the liability to pay tax detract from the appellants being bound, particularly in the absence of any public duty. We agree with the appellants. THE CASE OF THE SECOND RESPONDENT (L1) 51. The second respondent (L1) has filed a short Counter Affidavit in this Court. Therein, reliance is being placed on Sections 59 and 60 of the CGST. While, Section 59 provides for self-assessment by a registered dealer, Section 60, contemplates a dealer making a request to the proper Officer, in writing, giving reasons for payment of tax on a provisional basis, thus, leading to the tax being permitted to be paid on such rate as is specified by the Officer. According to L1, the Officer can determine the rate of tax. Thus, any bidder who would be the supplier of goods or services, is provided with a mechanism to enter the correct rate of tax in the bid. L1 has a case t....
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....pproved local supplier within the meaning of the Order. It is equally true that a preference is contemplated for local suppliers as defined in the Order. The margin of difference between L1 and the local supplier cannot exceed 20 per cent. It is also not in dispute that on the basis of the total price quoted, the margin of purchase preference is much more than 20 per cent. The contention of the writ petitioner is that the rights of the writ petitioner under the Government Order stand frustrated on account of L1 to L3 quoting the tax rate at 5 per cent. Emphasis was placed on the definition of the word 'local content'. The words 'local content' is defined as follows: "'Local content' means the amount of value added in India which shall, unless otherwise prescribed by the Nodal Ministry, be the total value of the item procured (excluding net domestic indirect taxes) minus the value of Imported content in the item (including all customs duties) as a proportion of the total value, in percent." 54. The contention of the writ petitioner is that unless the appellant found out the correct HSN Code and also the tax rate applicable for the product, the local content, as d....
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.... be on the bidder. Still further, the Railway Board has contemplated that during the transition phase, it was to be provided that offers will be evaluated, based on the GST rates quoted by each bidder and the same will be used for determining the inter se ranking. When a successful bidder invoices the goods with the GST rate or HSN Number different from that incorporated in the purchase order, payment is to be made at the rate, which is lower of the GST rate, as between what is incorporated in the purchase order or the invoice. It is further made clear in the Circular dated 05.09.2017 that if a higher tax rate is billed and an all-inclusive price is mentioned in the purchase order, then, the basic price would have to be accordingly adjusted to make it in conformity with all-inclusive price. 56. We cannot therefore hold that in view of the Make in India policy as contained in the order dated 15.06.2017, there is duty to declare the HSN code in the tender and what is more, make the tenderers quote the rate accordingly. 57. Unless Clause 2.9.2 is done away with (it must be remembered that there is no challenge to Clause 2.9.2), the tenderers would be free to quote a lumpsum rate....
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....n by the writ petitioner that it will be the responsibility of the bidder to quote the correct HSN Code and the corresponding GST rate while submitting the offer. We may notice the relevant clause: "A. 1. HSN number mentioned in tender 8504 is indicative only. It will be responsibility of the bidders to quote correct HSN number and corresponding GST rate while submitting offer. 2. Even if bidders quote different GST rates in offers, the offers shall be evaluated by IREP3 system based on the GST rate as quoted by each bidder and same will be used for determining the inter se ranking. Bidders may note that I. It shall be the responsibility of the bidder to ensure that they quote correct GST code and HSN number. II. Purchaser shall not be responsible for any misclassification of HSN number or incorrect GST rate if quoted by the bidder. III. Wherever the successful bidder invoices the goods GST rate of HSN number which is different from that incorporated in the purchase order, payment shall be made as per GST rate which is lower of the GST rate incorporated in the purchase order or billed. IV. Any amendment to GST rate or HSN number in the contract shall be as per the....
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....t is elementary that even the lowest bidder would not have right to have his bid accepted and is always open to the appellants in public interest and in accordance with the tender condition to reject even the lowest bid. No doubt if the tax rate in such a case is separately insisted upon, then on the rate acceptable to the appellants, the gross outflow can be calculated consisting the amount to be paid to the successful tenderer and the amount to be remitted to the revenue. In this regard, we notice from the tender condition relied upon by the writ petitioner which we have extracted at paragraph 58, what is contemplated is that the amount would be deducted at the applicable GST rate from the bill under the Reverse Charge Mechanism and deposited with the concerned tax authority. If under the terms of the tender, what is contemplated is that, in a case where the tax component is not included or it is included at a lower rate, the appellants are entitled to deduct the actual rate of tax as payable by it under the Reverse Charge Mechanism and the tender of such a person is accepted being the lowest tender, then there can be no question of public interest being prejudiced. If on the oth....